Criminal Justice Bill (Fourth sitting)

Laura Farris Excerpts

Committee stage
Thursday 14th December 2023 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (Laura Farris)]

Q I wanted to ask about the various forms of suspended account and suspended account schemes, which appear in schedule 5 to the Act to complement the confiscation provisions. Will you comment on them? Is that different from what you have currently? I am not an expert in this area.

Kennedy Talbot: No, neither am I. I am just here for clause 32 and schedule 4, and that is in schedule 5. However, I can say that I acted for a bank in a case in the High Court last year, which was effectively part 5 of the Proceeds of Crime Act 2002 being used to recover all the funds that were in suspended accounts, so it is possible to do it without new law, but I have not looked at the provisions of schedule 5 in any detail to be able to help with that; I am sorry.

[Laura Farris]

Q As a barrister, what do you think the kind of practical benefits of the confiscation measures will be?

Kennedy Talbot: Do you mean as they stand?

[Laura Farris]

In the Bill.

Kennedy Talbot: I think that the good things about the Bill include the statutory process to reach settlements immediately after a defendant is convicted. It is abbreviated to EROC, early resolution of confiscation, where the court can direct the parties to meet and seek to reach a settlement. I think that is a good idea. In my view, it needs some tinkering with, because at the moment the convicted defendant has no incentive to co-operate, and most defendants want to put off for as long as possible the day when their assets are confiscated, as you might expect. Unless we can work in some incentives, I do not think that will work as well as it might.

[Laura Farris]

Q Can you give me an idea of what those incentives might look like?

Kennedy Talbot: It might be difficult for the court to be able to ameliorate the sentence that the defendant might suffer. It may be possible to reduce slightly his confiscation liability—to give a reduction, as one gives a reduction to defendants who plead guilty—but by that stage, when we come to confiscation, most defendants are serving prison sentences, and their prison conditions are the most important thing to them, so prison privileges and categorisation might be the way to incentivise without damaging the public interest and people getting reductions in their sentences unjustifiably.

[The Chair]

Do any other Members have questions for this witness? No. In that case, thank you very much, Mr Talbot, for your time and for assisting the Committee in the way you have.

Kennedy Talbot: It has been a pleasure and a privilege. Thank you for inviting me.

Examination of Witnesses

Paddy Lillis, Paul Gerrard and Helen Dickinson OBE gave evidence.

--- Later in debate ---

[Alex Cunningham]

Okay, fair enough.

[Laura Farris]

Q I just want to say that I thought that your review was absolutely excellent, and it has contributed in a really profound way to the way we talk about these issues in Government. Following the passage of the Domestic Abuse Act 2021, it has been probably the most critical piece of work that has been produced for the benefit of Ministers. I reread it before you came, and I was just so impressed by how comprehensive and detailed it was.

We all know that you are, of course, supportive of the clause 24 provision, which mirrors what you recommended, but I wanted to ask you about some of the things that you have just said. You said in your report that you found that coercive control underpins all domestic abuse. I think that you also made reference to the fact that there is now a consultation happening on minimum sentences in two regards. The first is in relation to whether any killing—any domestic homicide, to use your language—where there has been coercive control should attract a minimum sentence. I think that that goes a bit wider than anything that you put in your review. I will ask you about that first, and then I will go on to the second part.

Clare Wade: My view about setting minimum sentences in stone is quite strong. I am actually not a fan of minimum terms and starting points because I think that it takes away quite a lot of judicial discretion. Even though they are only starting points, we often get stuck with them. There is an argument that schedule 21 is probably not fit for purpose. As I say in the paper, it is frozen in 2003 and it comes with the problem that there is always this issue of, “Do we add another starting point in?” I think that the 25-year minimum terms has done nothing but cause problems.

[Laura Farris]

Q Please correct me if I am wrong, but am I right in saying that that was a response to the Ben Kinsella case in 2008?

Clare Wade: Yes, it was.

[Laura Farris]

Q I worked a bit with Carole Gould; I think that you referred to her when you gave the example of her daughter’s case. Would you also agree that, in a way, it served to obfuscate what we would wish to say about some of these killings, because it creates this artificial distinction with what I think are more like gang-related crimes?

Clare Wade: Yes, that is one of the problems, I think. There are two issues. First, it creates legal anomalies anyway, because once you delineate a starting point for something like that, you have all sorts of problems about, “When is it taking something to the scene?” and you then have laws saying that taking a knife to the doorstep is taking it to the scene but taking a knife to another room is not taking it to the scene. That just reduces confidence in the law, I think; it just causes anomalies.

Secondly, as it stands, it does not fit with the other sorts of categories of harm within schedule 21 because, as I say in the report, it does not consider the vulnerability of the victim. It has one harm at purpose. That has caused all sorts of issues in terms of an obvious disparity, and we identified that disparity in the review. There is a disparity of six and a half years on average.

So it causes problems, and yes, you are absolutely right: it obfuscates the real issues because, by looking at the cases that we have looked at, looking at the literature and looking at our experience and the experiences of frontline responders and so forth, we know that the real issues are about what is now being identified as overkill or gratuitous excessive violence. The real issues are about, “Why do we not have a proper forensic approach to domestic abuse?” We do not have that. The whole idea of placing controlling and coercive behaviour and the model that I have identified at the forefront of the thinking is to achieve a proper forensic approach. We will not have this woolly attitude and people saying, “That’s not proper abuse,” and basing stuff on myths and so forth.

[Laura Farris]

Q I will not use up all the time. I could ask you a lot of questions, but I will ask you a couple on what you were saying about strangulation. You will recall that one area of your report, your conclusions at paragraphs 8.2 and 8.3, was about the “rough sex” manslaughter issue. You looked at more than 100 cases relevant to that, and you were dealing with the starting point. There were two issues really. There was the culpability categorisation that the judge had found in those cases. Am I right in saying that you thought a starting point was appropriate for cases of that nature?

Clare Wade: First of all, there were only two cases in the actual sample that came within the “rough sex” category: gross negligence manslaughter and unlawful act manslaughter. In one of those cases, culpability was levelled at category C, so around the middle, and in the other at category B, so higher culpability.

I said that those cases should always involve higher culpability, because the risks of some of the behaviour, in particular with strangulation—while that was not apparent in the cases that we looked at—are high. At the moment, the law distinguishes between “obvious” and “high”, and my view is that this is just a legal nicety when you are talking about strangling or choking somebody. All the experts will say—

[Laura Farris]

Q It is automatically high risk, and it is not understood that way by judges.

Clare Wade: No, it is not. The court is always constrained in terms of section 36 applications and referrals. They are always constrained by what evidence was before the sentencing court. There was found to be this distinction between “obvious” and “high”, and I am not sure that can exist.

My view is that we need to look at everything, and look at society as a victim. We need to dismantle the cultural scaffolding that goes with some of this offending, if we are really going to tackle domestic homicide. There is such a resonance with other harms. Even the harm of overkill, which is about obliterating women’s bodies because of anger and the motivation to kill and so forth, is apparent in strangulation. It was very important to look at that.

[Laura Farris]

Q I want to ask you one final question. The Ministry of Justice has written to the Sentencing Council about the culpability issue we have just been discussing. The Sentencing Council’s reply was that these cases should always be viewed as high culpability, but we know that they are not always. Are you able to comment on that? I would say that it is a source of tension at the moment.

Clare Wade: It is a source of tension. The Sentencing Council has also said that the cases are decided on their own facts. I would agree that a real tension is there. In only one of the cases that we looked at did the sentencing judge find that it was high culpability.

[Laura Farris]

Q There are a number where they are viewed in the category below: category C.

Clare Wade: Yes, there was another one that was category C—given that there were two cases, 50% of them were category C.

The review is probably the first document that brings into consideration the current thinking of academics, campaigners, specialists and doctors. There has been a lot of research done, for example, by Dr Cath White on strangulation. It brings it all into play, and we are trying to have a coherent approach. The beauty—if I can call it that—of using the coercive control model, is that it gives us that. As I said before, ultimately we want a proper forensic approach to domestic abuse in criminal law.

My view is that that approach is lacking at the moment, and that is why we struggle. That is why there is seeming injustice, for example, when a minority of women kill their abusive partners. They do not always get justice, as some of the research shows. Only by having that proper forensic approach across the board will we be able to change things. That is important.

The other point is that the Sentencing Council is conducting its own review—I have not seen all the cases it looked at—and what applies to that applies to my review as well: sentencing comments in themselves are an imperfect way of measuring everything that underpins these cases.

[Laura Farris]

Q Especially as the victim cannot give evidence.

Clare Wade: The victim cannot give evidence. If you are looking at sentencing comments, you are not looking at the evidence in the case. Take the two cases with which we started the review, those of Ellie Gould and, in particular, Poppy Devey Waterhouse—the review was initiated by the campaign on those cases. I was able to look at the prosecution case files and see that some of the factors we were able to identify in looking at the evidence were apparent in those cases.

In one of the cases, there was some stalking; in both cases, the killing happened at the end of the relationship where the victim wanted to leave the relationship; there was a little bit of violence. We found those factors, but they were not necessarily apparent from the sentencing remarks—one had to look at the papers through the coercive control prism to be able to identify them. Looking only at sentencing remarks is an imperfect way of looking at all these cases. That is why I welcome the Law Commission looking at the issue of defences.

[Alex Cunningham]

Q I was grateful that you were able to comment on the issues around self-harm. The Bill also covers policing. Do you have a view on the way the Bill treats police-perpetrated domestic abuse issues, the specified offences in relation to gross misconduct, and the requirement of vetting? It may not be your bag.

Clare Wade: I would obviously welcome that. We have had some very high-profile cases where police officers have committed dreadful offences. Public confidence, particularly the confidence of women, needs to be restored in policing, so I would welcome that transparency.

I suppose there is an underlying cohesion in some of what we say. For example, one of the questions that we wanted to answer in the review is how domestic homicides sit and fit with misogynistic killings of women generally. I hope that by identifying the real harms and placing them at the forefront of the law, we are able to show that. That goes back to some of the things we were saying a moment ago, namely that strangulation is a particular harm. It is pertinent to domestic killings, as we identified in the review, but it is also something that happens in other misogynistic killings of women. It is important to not just be able to isolate domestic killings of women, but have a policy that encompasses the misogyny that underpins some of the awful offences we have seen in the last few years.